Thinking | 20 May 2020

Back to work and COVID-19 – Part 1: How do I decide who returns to the workplace and when?

By Alison Baker 

Welcome to our new series of mini-articles providing practical guidance on what employers should consider in returning employees to the workplace.

In most States and Territories of Australia, the current government directive is that employees should work from home where possible. But for employers considering a return to the workplace, the extent of a return is up to each employer. Of course, any return to work must be within the limits of current State and Territory restrictions.

What seems certain is that a gradual approach will be necessary for many employers to comply with social distancing rules and the direction to stay home and government directions. So how should employers choose who goes back first?

This series is of a general nature and does not consider industry-specific advice, such as the unique considerations for aged care or retail employers. For industry-specific information, read Safe Work Australia’s new guidance or contact us to discuss your business. Employers must also consider the applicable State and Territory restrictions that will determine when and to what extent your employees can return to the workplace.

Who stays home, who goes back to the workplace?

Employers are free to decide which employees should return to the workplace first. Your business requirements will dictate this – for example, you could preference facilities employees who can help set up a COVID-safe workplace, or sales employees who need to make face-to-face sales calls to drive business. A hybrid approach, using staggered rosters and start times to bring most or all employees back sooner, is also an option for some employers.

However, many employees may be hesitant or refuse to return to the workplace. Some will prefer working from home or have general concerns about their safety, while others may have caring responsibilities or are concerned about the safety of someone they live with.

Employers should consider the following factors that may influence who returns to work first:

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Discrimination

You must not treat an employee unfavourably or directly or indirectly disadvantage them because of their age, parental status, pregnancy, disability, illness or other protected attribute. Doing so could breach State and/or Federal anti-discrimination laws.

For employees with a disability, including those who are immunocompromised, you’ll need to consider how you can ensure they are able to be productive and safe at work and what (if any) reasonable adjustments are required for them to perform their role.

Given that it is also breach of the Disability Discrimination Act 1992 (Cth) to discriminate on the basis of someone’s association with a person with a disability, if an employee is concerned about the health of a family member who is immunocompromised you will need to consider whether a direction to return to work is reasonable in the circumstances.

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Caring responsibilities

Employees with caring responsibilities may prefer to continue working from home. Employees can request flexible working arrangements under section 65 of the Fair Work Act 2009 (Cth) (FW Act) in certain circumstances. You will need to consider whether there are reasonable business grounds to refuse any such request.

Domestic violence

Consider what you know about your employees’ home environment. If employees are at risk of domestic violence it may be appropriate to ask them to return to the workplace sooner.

Ability to continue to work from home

You should consider each employee’s position, duties and work-from-home set up and whether employees can adequately perform their duties from home. Each of these issues needs to be determined on a case-by-case basis depending on a particular employee’s circumstances.

Privacy

Of course, employees will likely wonder why some people are back at the workplace and others remain at home. You’ll need to protect employee privacy to ensure an employee’s health and personal information remains confidential. Unless employees consent, you should never release their sensitive personal or health information to others, even if it’s in response to an innocent question about a colleague’s whereabouts.

How do I bring back employees from stand down?

Employees may currently be stood down under either section 524 (a regular stand down) or section 789GDC (a stand down in accordance with the new JobKeeper provisions) of the FW Act. Alternatively, stand down may be in place under an enterprise agreement or common law agreement stand down provision. How employees are brought back to work will need to be determined by reference to the requirements under the applicable stand down provision. You should consider whether employees will be:

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working ordinary hours or reduced hours?
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undertaking their ordinary duties or will other duties be required?
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required to work from a different location temporarily?
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be required to work outside the hours of their ordinary hours of work?

Depending on how you answer these questions, and if you’re eligible for JobKeeper, you may need to issue a further direction to stand down under section 789GDC. This may also be the case if a stand down direction under section 524 is no longer lawful as a result of government restrictions easing.

If you are unsure about what requirements must be met under each different scenario, or are unsure about whether your business meets the relevant stand down criteria, seek advice about your options. Don’t risk getting it wrong and ending up in the Fair Work Commission.

Review variation agreements

If employees have had their hours and/or pay reduced while on unpaid leave or working from home this is a good time to review those agreements and determine whether any changes need to be made. Make clear to those employees whether these arrangements will or won’t continue once they’re back in the workplace.

Decided which employees will go back to the workplace?

Stay tuned for the next article in our Back to Work series, where we’ll summarise the significant WHS obligations and risks for employers when returning to the workplace, including the ability to obtain medical clearances or whether you can direct employees to submit to a temperature check.

More information and resources on COVID-19 can be found at our COVID-19 Resource Centre. If you would like assistance in understanding your employment law obligations, contact us to discuss your business.

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